Is The Backing Track To Beyonce's Rendition Of The Star Spangled Banner In The Public Domain?

from the worth-asking dept

As we've discussed in the past, works created by the federal government are automatically in the public domain under section 105 of US copyright law:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

So... that would suggest that musical works created by the federal government should be in the public domain, right? And... according to the Times of London, the performance of the Star Spangled Banner by Beyonce at President Obama's inauguration, was actually pre-recorded by the Marine Corp. Band, and then lip synced by Beyonce. Last we checked, the Marine Corp. Band is a part of the US government, meaning that recordings it creates should be in the public domain.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.

The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London

The performance by Beyonce could still be covered by copyright, since she is not an employee of the government, but that backing track almost certainly should be in the public domain. Of course, it's unclear to me if, even if the track is in the public domain, the federal government has an obligation to hand it over as part of FOIA request, but it seems like it's at least reasonable to ask.

Under Educational Recordings there's this disclaimer: The Marine Band produces recordings for educational purposes and to enhance the public affairs and community relations of the United States Marine Corps. The recordings are distributed free of charge to educational institutions, public libraries, and radio stations. Because appropriated funds are used, they may not be distributed for private use and are not for sale.

Re: Not a governement employee, but...

Usually (as in, in most jurisdictions I am familiar with) the work-for-hire default status can be overridden by a contractual term. So we would need to see the contract between whoever was involved. However, that might not override the s105 provision mentioned above.

Plus there's also the issue of who owns the original copyright in a sound recording; in the EU (iirc) that is the producer of the recording, not the artists. So it may be that if Beyonce (or her minions) produced the record and the Marine Band merely performed, then the copyright might still exist - depending on your interpretation of s105; anyone know the case law on that?

I'd say the government should have an obligation to hand it over if the citizen wants it. The government is supposed to serve the people, and the people have the right, not privilege, to a work created by a government entity using taxpayer dollars and under the public domain.

In theory, of course. In practice, the RIAA will probably tell them to say no, because that's who the government is really for these days.

For the fans

Beyonce could engender huge amounts of popularity if she worked with the Marine Corps Band to release the song into the public domain. The goodwill would probably even spill over to President Obama. Thousands of little league games, high school basketball games, and other venues could use the track to kick off events.

It's not as if she'd ever try to sell this track; might as well make it available in exchange for a long-lasting boost to her name recognition. Might even start a trend.

Multiple copyrights...

The performance by the Marine Corps band would be in the PD, as per Section 105, as Mike points out. We don't know who made the recording, though. It could be that Beyonce and/or the government brought in an outside recording engineer. We would need to know the terms of the employment contract for the music. And we don't know who wrote this arrangement of the Star Spangled Banner. It would have its own copyright, unless it was crafted by a federal employee.

Unfortunately an FOIA request for the backing tracks would likely say nothing about copyright status of the work.

Re: Re:

Just got a peek at the transcript:

______ can you see by the ______,
What so ______ we hailed at _____,
Whose broad ______ and bright ______ through the ______ fight,
O'er the ______ we watched, were so gallantly ______?
And the ______ red ______, the ______ bursting in ______,
Gave ______ through ______ that our ______ was still ______;
O say ______ that ______ yet wave,
O'er the ______ of the ______ and the ______ of the ______?

Re:

"The United States Marine Band is the premier band of the United States Marine Corps. Established by act of Congress on July 11, 1798, it is the oldest of the United States military bands and the oldest professional musical organization in the United States."

"The Marine Band recruits experienced musicians; members are selected through a rigorous audition procedure and must satisfy additional security and physical requirements to be eligible. Selected band members serve under a four-year contract as active duty enlisted Marines and are subject to the Uniform Code of Military Justice and physical standards."